Opinion
No. 43022.
July 15, 1970.
Appeal from the County Criminal Court at Law No. 2, Harris County, Wallace C. Moore, J.
Dixie, Wolf Hall, by George C. Dixie, Houston, for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell, and Vic Driscoll, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
The conviction is for violation of Art. 802, Vernon's Ann.P.C., driving while intoxicated. The punishment, a fine of $100 and twenty days in jail, probated.
Art. 802, supra, provides: 'Any person who drives or operates an automobile or any other motor vehicle upon any public road or highway in this State, or upon any street or alley within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, shall be guilty of a misdemeanor * * *.'
The information on which the appellant was tried and convicted alleges that the appellant operated a motor vehicle while intoxicated upon a public highway in Harris County, Texas.
The complaint upon which the information is based alleges that the appellant on March 24, 1969 '* * * did then and there unlawfully operate Upon private property a motor vehicle, to wit: an automobile while under the influence of intoxicating beverages, to wit: 1003 Richmond, Houston, Harris County, Texas.' (Emphasis added)
The complaint set out above does not allege a violation of Art. 802, supra, for which the appellant was convicted. Morris v. State, 161 Tex.Crim. R., 280 S.W.2d 255.
Article 21.22, Vernon's Ann.C.C.P., provides in part: 'No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense.'
The information being based upon an invalid complaint is therefore fatally defective. Pitts v. State, 149 Tex.Crim. 608, 197 S.W.2d 1012; 1 Branch's Penal Code 2d 483, Sec. 496 and cases cited.
For the reason stated the judgment is reversed, and the prosecution ordered dismissed.